Forfeiture. notice. (409) We have already considered forfeitures as a means whereby real property may be partially or totally forfeited. Forfeitures of goods and chattels have been at various times inflicted by special statutes for particular crimes and misdemeanors, some of which were mala in se, or offenses against the divine law, either natural or revealed; others, and by far the greatest part, were mala prohibita, or such as derive *their guilt merely from their prohibition by the laws of the land; [* 606] such, for instance, as the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto, and the forfeiture of 107. by 9 Ann. c. 23, for printing an almanac without a stamp. These, indeed, have been abolished (h), but there are some others now in existence, such, for instance, as the penalty of 107. forfeited under the copyright act (i), to the proprietor of a copyright which has been infringed (k). The details of these cannot find a place here. But a more general forfeiture of all the personal property of an offender has long been inflicted in the case of the greater crimes, such as treason (1), felony (m), or præmunire (n). In this case the forfeiture is to the crown. The nature of these offences will appear in the fourth book of these Commentaries. The forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. For chattels are of so When forfeiture vague and fluctuating a nature, that to affect them by any relacommences. tion back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5 (0). Though a bona fide conveyance of property for good consideration, after the offense and before conviction, is good (p). Moreover, as a felon is only restored [* 607] to civil rights upon his pardon, or the expiration of his sentence, all personal property which accrues to a felon in the interval between his conviction and pardon, or expiration of his sentence, is forfeited as well as that belonging to him at the time of the conviction (q). But though he may have at that time a contingent interest, if the contingency do not occur till after the restoration of his civil status, there is no forfeiture (r). * (409) "The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." Const. U. S., art. 3, § 3. [* 608] Title by custom. *CHAPTER XXVIII. TITLE BY CUSTOM. A FOURTH method of acquiring property in things personal, or chattels, is by custom: whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless, should we attempt to enumerate all the several kinds of special customs which have been held to entitle a man to a chattel interest in different parts of the kingdom. We had occasion (a) to notice one instance, that of heriots, where a lord of a manor, or other chief lord, is, as we said, entitled by custom to the best live beast, or averium, of which a tenant dies possessed, or some other chattel, or, as is now more usual, a payment of money in lieu of the chattel. The custom, originally a Danish one, seems to have been, in some measure, founded upon the voluntary act of the tenant, the chattel being looked on as a sort of legacy to the lord (b), though afterwards the bounty was of rather a forced character. Heriots. Mortuaries. Another instance is that of mortuaries: Mortuaries are a sort of ecclesiastical heriots, being a customary gift claimed by and due to the minister in very many parishes on the death of his parishioners (c). They seem originally to have been, like lay heriots, only a voluntary bequest to the church, being intended, as Lyndewode informs us, from a [* 609] constitution of Archbishop Langham, as a kind of expiation and amends to the clergy for the personal tithes, and other ecclesiastical duties, which the laity in their lifetime might have neglected or forgotten to pay. For this purpose, after (d) the lord's heriot or best good was taken out, the second best chattel was reserved to the church as a mortuary: "si decedens plura habuerit animalia, optimo cui de jure fuerit debitum reservato, ecclesiæ suæ sine dolo, fraude, seu contradictione qualibet, pro recompensatione subtractionis decimarum personalium, necnon et oblationum, secundum melius animal reservetur, post obitum, pro salute animæ suæ (e). And, therefore, in the laws of King Canute (f), this mortuary is called soul-scot, or symbolum animæ. It was anciently usual in this kingdom to bring the mortuary to church along with the corpse when it came to be buried; and thence (g) it is sometimes called a corse-present: a term which indicates that it once was a voluntary donation. However, in Bracton's time, so early as Henry III., we find it rivetted into an established custom: insomuch that the bequests of heriots and mortuaries were held to be necessary ingredients in every testament of chattels. "Imprimis autem debet quilibet, qui testamentum fecerit, dominum suum de meliori re quam habuerit recognoscere; et postea ecclesiam de alia meliori:" the lord must have the best good left him as an heriot; and the church the second best as a mortuary. But yet this custom was different in different places: "in quibusdam locis habet ecclesia melius animal de consuetudine; in quibus (a) Ante, p. 197. (b) Magis fit de gratia quam de jure. Bract. L. 2, c. 36, s. 9. See also Fleta, L. 3, c. 18; Britton, c. 69. (c) See Burn, Ecc. L. tit. Mortuaries. (d) Co. Litt. 185. (e) Provinc. 1. 1, tit. 3. (g) Selden, Hist. of Tithes, c. 10. dam secundum, vel tertium melius; et in quibusdam nihil: et ideo consideranda est consuetudo loci" (h). This custom still varies in different places, not only as the mortuary to be paid, but the person to whom it is payable. [* 610] Wales a mortuary or corse-present was due upon the death of every Mortuary on man. * In clergyman to the bishop of the diocese; till abolished, upon a death of clergy recompense given to the bishop, by the statute 12 Ann. st. 2, c. 6. And in the archdeaconry of Chester, a custom also prevailed, that the bishop, who was also archdeacon, should have, at the death of every clergyman dying therein, his best horse or mare, bridle, saddle, and spurs, his best gown or cloak, hat, upper garment under his gown, and tippet, and also his best signet or ring (i). But by statute 28 Geo. 2, c. 6, this mortuary was directed to cease, and the act has settled upon the bishop an equivalent in its Mortuary on death of a prelate. room. The king's claim to many goods, on the death of all prelates in England, seems to be of the same nature; though sir Edward Coke (k) apprehends, that this is a duty due upon death, and not a mortuary: a distinction which seems to be without a difference. For not only the king's ecclesiastical character, as supreme ordinary, but also the species of the goods claimed, which bear so near a resemblance to those in the archdeaconry of Chester, which was an acknowledged mortuary, puts the matter out of dispute. The king, according to the record vouched by Sir Edward Coke, is entitled to six things: the bishop's best horse or palfrey, with his furniture; his cloak, or gown, and tippet, his cup, and cover; his bason and ewer; his gold ring; and lastly, his muta canum, his mew or kennel of hounds. c. 6. The variety of customs, with regard to mortuaries, giving frequently a handle to exactions on the one side, and frauds or expensive litigations on the Stat. 21 Hen. 8, other; it was thought proper, by statute 21 Hen. 8, c. 6, to reduce them to some kind of certainty. For this purpose, it is enacted, that all mortuaries, or corse-presents to parsons of any parish, shall be taken in the following manner; unless where by custom less or none at all is due: viz., for every person who does not leave goods to the value [* 611] of ten marks, nothing; for every person who leaves goods to the value of ten marks, and under thirty pounds, 3s. 4d.; if above thirty pounds, and under forty pounds, 68. 8d.; if above forty pounds, of what value soever they may be, 108., and no more. And no mortuary shall, throughout the kingdom, be paid for the death of any feme-covert; nor for any child; nor for any one of full age that is not a house-keeper; nor for any wayfaring man; but such wayfaring man's mortuary shall be paid in the parish to which he belongs. And upon this statute stands the law of mortuaries to this day. The instance of this kind of title, which is perhaps the most interesting because the most familiar to us by name, is that of heir-looms. Heir-looms are such goods and personal chattels, as, contrary to the nature of chattels, go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon origin; in which language it signifies a limb or member; so that an heir-loom is nothing else but a limb or member of the inheritance. They are generally such things as cannot be taken away without Heir-looms. (h) Bracton, 1. 2, c. 26; Flet. 1. 2, c. 57. (2) Cro. Car. 237. (k) 2 Inst. 491. VOL. I.103 damaging or dismembering the freehold: otherwise the general rule is, that no chattel interest whatsoever shall go to the heir, notwithstanding it be expressly limited to a man and his heirs, but it is his absolute property, and in default of his dealing with it during his life, it goes to his executor or administrator. If a gift of a chattel be made to A. and the heirs male of his body, or by any other expression which, in the case of land, would create an estate tail, it vests in him the absolute property. It is not uncommon for testators to desire to make personal property, such as leaseholds or family plate or jewels, go in strict settlement, together with the family mansion, or sometimes to have them handed down from generation to generation, as if they were heir*looms, even when there is no family estate. Since, however, heir[* 612] looms, properly so called, exist as such only by custom, such desires can only be partially fulfilled. Various devices have been contrived to keep the settlement alive as long as possible. The ordinary limitations which are applied to land would vest the property absolutely in the first tenant-in-tail; and on his death, even if he died the moment after his birth, the property would go, not to the next remainderman in the settlement, but to his representatives. The usual method, then, which is now adopted in these cases, is to add a declaration that the property shall go over if the tenant-in-tail dies under twenty-one years of age. This declaration operates as an executory bequest, and if it be limited so as not to contravene the rules against perpetuity (7), it will have its effect so as to prevent the representatives of a tenant-intail who dies in infancy from becoming entitled. The chattels in such cases are not heir-looms, property so called, which do not depend on the term of a gift, but upon custom. Instances of true heirlooms are the following: Deer in a real, authorised park, whilst wild (m), fishes in a pond, doves in a dove-house, &c., though in themselves personal chattels, yet are so annexed to, and so necessary to the well-being of the inheritance, that they accompany the land wherever it vests, by either descent or purchase (n). For this reason, also, the ancient jewels of the crown may be considered to be heir-looms (o); for they are necessary to maintain the state, and support the dignity, of the sovereign for the time being. And so an ancient horn, when land is held by tenure of cornage, may be an heir-loom (p). Charters, likewise, and deeds, *court-rolls, and other Charters, title- [* 613] evidences of the land, together with the chests in which they are contained (q), pass together with the land to the heir, in the nature of heir-looms, and do not go to the executor (r). By special custom, also, in some places, carriages, utensils, and other household implements, may be heir-looms (s); but such custom must be strictly proved. On the other hand, by almost general custom, whatever is strongly affixed to the freehold or inheritance, and cannot be severed from thence without violence or damage, "quod ab ædibus non facile revellitur (t)," is become a member of the deeds, courtrolls. (1) Which may be easily done by confining the declaration to tenants-in-tail by purchase. See 2 Jarm. Wills, 548. Shelley v. Shelley, L. R. 6 Eq. 546 (a case in which the subjectmatter was jewels, and there was no land); Holloway v. Webber, ib. 523. (m) Morgan v. Abergavenny, 8 C. B. 768; Ford v. Tynte, 2 J. & H. 150. (n) Co. Litt. 8. (0) Ib. 18. (p) Pusey v. Pusey, 1 Vern. 273. (9) According to some old authorities, the chest goes to the executor, if it be not sealed up. Plowd. 323; Bro. Abr. Chatteles, 18. But the weight of authority is against this, 1 Will. Exors. 610. (r) Bro. Abr. tit. Chatteles, 18. (t) Spelm. Gloss. 277. inheritance, and shall thereupon pass to the heir; as chimney-pieces, pumps, old fixed or dormant tables, benches, and the like (u). It has, indeed, been thought that only such things as these and other ponderous chattels can be heir-looms (x). Heir-looms, properly so called, are, with the exception of title-deeds, very rare. Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone, in a church (y), or the coat-armour of his ancestor there hung up, with the pennons Monuments, &c. and other ensigns of honour, suited to his degree. In this case, although the freehold of the church is in the parson, and these are annexed to that freehold, yet neither the parson nor any other can take them away or deface them, but is liable to an action from the heir (z). Formerly heir-looms could not be devised away from the heir, unless the land to which by custom they were annexed were also devised, even by a tenant in fee-simple (a), on the ground given by Littleton, that the [*614] devise must operate in subordination to the custom which vests the property in the heir instantly at the death, and before the devise can take effect. This cannot, it would seem, be now the law: the general power of disposition possessed by testators must extend to give them absolute control over even heir-looms (b). These instances of heriots, mortuaries, and heir-looms sufficiently illustrate title by custom. *CHAPTER XXIX. [* 615] TITLE BY SUCCESSION AND MARRIAGE. IN the present chapter we shall take into consideration two other species of title to goods and chattels,- those by succession and marriage. Title by succession, in strictness of law, is only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and Title by succession. fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, moveables, and other chattels of the corporation. The true reason of this is, because in judgment of law a corporation never dies; and, therefore, the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate (a). Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give any thing to be taken in succession by such a body, that succession need not be expressed: but (u) 12 Mod. 520. See ante, p. 283, as to fixtures. (x) Lord Petre v. Heneage, 1 Ld. Raym. 728. (y) See Spooner v. Brewster, 3 Bingh. 136; 10 Moore, 494. (2) 12 Rep. 105; Co. Litt. 18. (a) Co. Litt. 185; Tipping v. Tipping, 1 P. W. 730. (b) See 7 Will. 4 & 1 Vict. c. 26, s. 3. |